UK: Discrimination And Unfair Dismissal Territorial Jurisdiction Tests Are The Same

Hottak v (1) Secretary of State for Foreign and Commonweath
Affairs (2) Secretary of State for Defence [2016] EWCA Civ 438

Why care

The Equality Act 2010 does not refer to its territorial scope.
The Employment Rights Act 1996 (which includes protection for
employees against unfair dismissal) is also silent on territorial
scope (following the repeal of section 196 in 1999). Case law has
since identified a number of categories of employee who are
protected under the Employment Rights Act:

Employees who ordinarily work in Great Britain at the time of
dismissal

Peripatetic employees who move between jurisdictions but have
their base in Great Britain at the time of dismissal

Expatriate employees posted to another jurisdiction in order to
further their British employer's business

Employees who, despite not fitting into the categories above,
have an "equally strong connection" with Great
Britain.

(Serco Limited v Lawson (2006))

These categories are examples, and not exclusive. The question
in each case is whether, on the facts, that individual has a
sufficiently strong connection with Great Britain (Ravat v
Halliburton Manufacturing and Services Limited (2012)).

In this case, the Court of Appeal had to consider whether Afghan
nationals working for the UK Armed Forces in Afghanistan were
entitled to bring claims under the Equality Act in the UK.

The case

Two Afghan nationals worked as interpreters for the UK Armed
Forces in Afghanistan. From 2006 to 2009, they worked under Afghan
law contracts of employment, were paid in US dollars, and were
provided with identical uniforms to the British soldiers with whom
they worked. Although their contracts changed after 2009 and they
worked at a different base, they continued to work as military
interpreters. They and their families suffered intimidation and
death threats because of their work and they left their employment.
One was granted asylum in the UK, and one remains in Afghanistan
(and his identity is protected by an anonymity order).

Afghan nationals were entitled to benefit from the Intimidation
Policy and the Redundancy Policy (together called the Afghan
Scheme) which offered financial benefits and relocation
opportunities (in limited circumstances, to the UK) to those who
qualified (in fact, neither of the Claimants did). They argued that
the similar Iraq Scheme which had applied to locally-employed Iraqi
staff working for the UK Armed Forces was more generous.

The interpreters argued that they were UK government employees
and that the Equality Act should apply. They sought judicial review
of a 'failure' by the Secretaries of State to extend to
them and other Afghan locally employed staff an assistance scheme
like the Iraq Scheme. They alleged that this was because of their
nationality and was either direct or indirect discrimination in
relation to access to employee benefits or the provision of
services in the exercise of a public function.

The High Court rejected their claims, proceeding on the basis
that the territorial scope of the Equality Act should be the same
as that of the Employment Rights Act. The interpreters did not fall
within any of the three principal Lawson categories, leaving only
the fourth possibility. Whilst they had a vital role to play
supporting British forces, they were locally engaged to provide
local support and their only link to Great Britain was the identity
of their employer, and it could not be said that they had stronger
connections with Great Britain and its law than with Afghanistan.
Their position was comparable to that of locally employed staff in
a British embassy (as in Bryant v Foreign and Commonwealth
Office (2003), where the staff were held to be outside the
scope of the Employment Rights Act).

The interpreters appealed to the Court of Appeal, which
dismissed the appeal.

The fact that the Equality Act is directed at outlawing
discrimination and so concerns matters "going to the very
essence of man's humanity to man" does not mean its
territorial scope should be looked on with greater sympathy or
extended wider than that for unfair dismissal. If Parliament had
intended the Equality Act to apply worldwide, it would have said
so. Both the Equality Act and the Employment Rights Act are silent
as to their territorial scope, and there was no warrant for reading
into this "a subtly nuanced variance of legislative intention
as between the two types of case".

In this case, the mere fact that the employer was the British
government was not sufficient on its own to manifest a sufficient
connection with Great Britain and British employment law.

What to take away

The Court of Appeal was clear that the test for territorial
jurisdiction should be the same for claims under the Equality Act
and the Employment Rights Act.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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